Facebook, ACLU weigh in on case against Hampton sheriff

HAMPTON — When you click the "like" button on Facebook, are you engaging in your right to free speech?

The answer could have an impact on a Hampton lawsuit that's now gaining national attention.

A wrongful termination suit was filed in March 2011 by six former employees of Hampton Sheriff B.J. Roberts, claiming that he fired them in retaliation for supporting Roberts' opponent in a 2009 political campaign.

A federal judge threw out the case earlier this year, ruling in part that a single click of a mouse on Facebook — all that's needed on the social networking site for a "like" — is not protected free speech.

But now, Facebook and the ACLU of Virginia have entered the fray, joining with Roberts' former employees in asking a federal appeals court to reverse the lower court ruling about "liking."

During the campaign, one of Roberts' now-fired deputy sheriffs, Daniel Ray Carter Jr., "liked" the website of Roberts' campaign opponent, Jim Adams, a former lieutenant colonel under Roberts. Carter also held a cookout, attended by Adams, during the campaign season.

On his campaign Facebook page, Adams had written: "I am confident that through hands-on leadership, I can restore the Hampton Sheriff's Office to a healthy state with high staff morale, and increased focus on public safety, sound finances and accountability to those who elect me."

Under Adams' quote was the line, "303 people like this." Six of the likers — including Carter — were pictured, with another click of the mouse needed to see the other 297 people. That was among the reasons Carter was fired, the suit alleges.

But in an April ruling, U.S. District Judge Raymond A. Jackson, based in Norfolk, threw out the case for various reasons — ruling in part that "one click of a mouse" on Facebook isn't tantamount to protected speech.

Jackson contrasted the simple "like" in the Roberts case to other Facebook cases where the protected statements were far more "substantive."

"Simply liking a Facebook page is insufficient," Jackson wrote. "It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter's posts from one click of a button on Adams' Facebook page."

He added that it's "improper" for the court to "assume," without evidence, that Carter was making a "specific statement" by clicking his mouse once.

But Carter and the other five former employees have appealed Jackson's ruling to the U.S. Fourth Circuit Court of Appeals.

And Facebook and the ACLU beg to differ with Jackson's ruling.

"Clicking the 'Like' button announces to others that the user supports, approves or enjoys the content being 'Liked,'" the ACLU says in a friend-of-the-court brief filed on Monday. "In this way, an individual who uses the 'Like' button is making a substantive statement. This is especially the case when a user 'Likes' a political candidate, as that is a clear sign of support for that candidate."

Facebook, in its own friend-of-the-court brief, argued that Jackson's ruling indicates "a misunderstanding of the nature of the communication at issue" and disregards well-settled case law.

"Liking a Facebook page (or other website) is core speech," a Facebook lawyer wrote. "It is a statement that will be viewed by a small group of Facebook friends or a vast community of online users."

Facebook's brief continued: "If Carter had stood on a street corner and announced, 'I like Jim Adams for Hampton Sheriff,' there would be no dispute that his statement was constitutionally protected speech. Carter made that very statement; the fact that he did it online, with a click of the computer's mouse, does not deprive Carter's speech of constitutional protection."

Neither Roberts nor his attorney, Jeff W. Rosen, could be reached for comment for this story on Wednesday.

In the appeal of Jackson's lower court ruling, the Newport News lawyer for the six fired employees, James H. Shoemaker Jr., argues that Jackson's ruling is contrary to case law "and simply inexplicable."

"It is clear that Sheriff Roberts and his most senior officers viewed their presence on Adams' Facebook page as communicating (the employees') 'support' for Adams," the appeal brief said.

For example, the appeal contends that Roberts told gathered deputies at one point, "Don't be getting on Facebook supporting my opponents."

According to the appeal, Roberts also told deputies at that meeting that "my train is the long train," and that Adams' train is "the short train." Also according to the appeal, he pulled Carter aside at one point and said, "You have made your bed, now you're going to lie in it."

It's not clear that a ruling by the Fourth Circuit Court of Appeals reversing Jackson's legal reasoning on the Facebook "liking" issue will be enough to get the case back before Jackson and to a trial. Jackson threw out the case for various other reasons, as well.